Perpetual Torture? – No Problem

November 17, 2010

Today the Guardian reports that several (alleged) victims of torture in the US managed global gulag will be paid off, and will be dropping their cases against the British intelligence services, members of whom allegedly witnessed their treatment. It was expected that trials of the accused intelligence employees would provide fresh evidence of higher level complicity in torture, both in London and Washington, yet the public will not learn through such channels of any such behaviour.

As the Guardian editorialises, the “decision is bad in many ways for accountability and justice.” Naturally, but there’s more.

The deal to drop the torture cases is being sold as a “trade off.” While the government in some vague way admits by making the payments that wrongdoing occurred somewhere along the detention pipeline, the state “gets the protection it craved against disclosure in open court of many tens of thousands of classified documents.” A possible argument with Langley may have been avoided.

But again, there’s more. This is a rough trade for justice indeed. A green paper will also be introduced into the Commons next year “which will massively tighten the terms on which intelligence information can be disclosed in courts.” If this passes, in return for paying off torture victims, the state will enjoy perpetual protection from future victims.

As the Guardian puts it, “In return for fresh official commitments to put torture and complicity more firmly than ever beyond the pale, ministers intend to place the detailed anti-terrorist work of the intelligence and security services much further beyond legal scrutiny than it currently is in the light of recent court rulings.” And we know what “official commitments” are worth.

Justice Minister Kenneth Clarke has been at pains to spin the decision as a wise one, and an economical one, making the weaselly argument that court cases involving torture and rendition could have cost some £50 million. Clarke also called torture claims “frivolous.” But he cannot hide the major reason for the decision and the forthcoming green paper.

As the New York Timesputs it, “the government move followed years of lawsuits by the former detainees in which British officials have been required to hand over to the courts here intelligence information that came from the United States, prompting high-level American warnings that future intelligence cooperation might be curbed.”

The British government has essentially given in to pressure from Washington, forcing this intervention into the judicial process. That should not be confused with a reluctance to do so. Indeed, there is no sign that the government is genuine in backing the trial of alleged torturers. In any case, the green paper would make such prosecutions all but impossible, and there seems to be no disquiet amongst ministers about this.

But torture and mistreatment of detainees, aside from the practice of rendition, are disgusting crimes. Functionaries of the state should not be shielded from prosecution, and certainly not of scrutiny when credible allegations are made.

Would you want to see your persecutor prosecuted if they:

locked you in a room with the lights on for 24 hours a day

left the air conditioning on all day and night so that you became so cold you could see your breath condense before you

sprayed water at high pressure up your nose until you thought that you would suffocate

forced you to spend days of solitary confinement in tiny sheet metal cells

forced you to sit motionless for months in a wire cage with other detainees yet forbid you to talk or eat without permission, beating you if you failed to comply

Despite receiving payment, Omar Deghayes will no longer be able to see his persecutors brought to justice.

Martin Mubanga was kidnapped while on holiday in Zambia and taken to Guantanamo where he was regularly interrogated, “his hands…shackled in rigid, metal cuffs attached to a body belt; another set of chains ran to his ankles, severely restricting his ability to move his legs.”

He once asked to be able to be taken to the toilet, yet his interrogators simply left the room, forcing him to either defecate into his clothing or onto the cell floor. His interrogator returned with a mop and bucket and began smearing Mubanga with his own waste, saying all the time “Oh, the poor little negro, the poor little nigger.”

In Mubanga’s case, a full trial may have shed light on his refusal to act as a covert agent for MI5 and the CIA, and why his refusal led immediately to rendition from Lusaka to Guantanamo.

A full trial may also have shed light on the scandalous detention of Bisher al-Rawi and Jamil el Banna, who were detained in Gambia and flown to Kabul, Bagram and then Guantanamo Bay, losing 5 years of their lives. We know that Bisher and Jamil were detained at Gatwick Airport before travelling to Gambia, where they intended to plan a business venture involving peanut processing. After it was found that they were not carrying any dangerous implements, as had been alleged, they were subsequently assured by MI5 that “they had nothing to worry about travelling to Gambia.”

As the legal campaigning charity Reprieve relates, “It is clear that British officials encouraged both men to travel on this wholly innocent business trip to Gambia, and then actively worked with the US to effect his detention and rendition to Afghanistan and Guantanamo.”

As soon as they touched down in Gambia, the two were arrested and rendered to Kabul. They were eventually found to be totally innocent of any terrorism related charges.

Yet there will be no prosecution of those who stole so much of their lives.

Advertisements

Share this:

Like this:

Related

10 Responses to “Perpetual Torture? – No Problem”

The article goes further than the Guardian and points out the dangers of the envisaged changes in the law. What are you advocating? Do you expect all of the activities of MI5 and MI6 to be in the public domain? Do you expect their staff to be publicly identified? I think many people (not all) will join you in abhorring torture, but the counter-argument is that we are at war and anything goes. Are you saying never torture in order to protect the innocent? You should at least acknowledge that there is a moral dilemma. I don’t think it’s as simple as saying that government employees and agents must never torture under any circumstances.

I think that a moral dilemma is conceivable, but in none of these cases was it ever an issue. They never got to the stage where torturers had strong evidence that the prisoners in their care knew of imminent attacks and that torturing them could avert them.

They may have had strong suspicions, but this is a long, long, way away from possessing evidence. Without such evidence, they committed a very clear moral offence in failing to pursue even a modicum of evidence with which to justify their brutality. Hence, they can be very easily named, with the torture dilemma never arising.

Changes to the law will ensure that anyone who finds themself in a similar situation will not need to fear exposure in a court of law. This is the key point. Absolutist statements about whether it is never right to torture are not at stake, although very salient. The point is that torture is being regularised, brushed under the carpet, in cases where if the facts were known, then state employees would face lengthy jail terms and the intelligence services would be deeply shamed.

As for arguments about the permissibility of torture, I hold the position that it is always wrong, yes. There is very little evidence that it works (torture victims will say anything to alleviate their suffering), while the torture of innocent people perpetuates the very grievances which gave rise to the “war on terror” – and cannot be said to be a viable war strategy.

I accept what you say about these particular cases and would not condone torture except in the most extreme situations.

What, for example, should Jack Bauer do in the typical “24” scenario? He is alone in a room with a person who he has good reason to believe has knowledge which could prevent detonation of a nuclear device in a major city. He is reluctant to share this knowledge. Energetic discussion and persuasion do not do the trick. All other means fail. Does he walk out of the room and say “Well that’s tough luck on LA, Minneapolis or wherever as I do not believe in torture under any circumstances?”

An interesting question, actually, although not one that any American interrogators at Guantanamo seem to have faced. The dilemmas faced by the fictional Bauer were a direct inspiration for the torturous practices OK’s by the Bush administration.

In his autobiography, Bush adminstration lawyer wrote: “What if, as the Fox television program ’24’ recently portrayed, a high-level terrorist leader is caught who knows the location of a nuclear weapon?”

Bauer was adduced by Michael Chertoff as an exemplar in talks about the admissibility of torture.

Diane Beaver, staff judge advocate general during the Bush administration told British lawyer and writer Phillippe Sands that Bauer “gave people lots of ideas.”

The construction of moral scenarios in which the forces of order confronted a “ticking time bomb” provided the framework for introducing wholesale torture into the detainee pipeline, despite being vanishingly rare in real life.

It’s all about agendas. Here there are three and I will mention mine first. I believe that the absolutist “no torture under any circumstances” view does not hold up and I think you skate round that. The second is the practical one about the behaviour of governments. The Bush administration’s use of Jack Bauer as a paradigm for good governance demonstrates (as if we needed the tip) that governments will manipulate populations through fiction and lies, Bush with 24, Julius Streicher with Der Sturmer. I appreciate that your key point is that the torture issue is being addressed by the British government only from the point of view of how best to conceal it and/or render it unpunishable.

If the absolute view against torture doesn’t “hold up” then international law and the vast majority of national human rights laws have somehow missed the vast legitimacy of contingent arguments in favour of torture.

I don’t think they have. Torture is recognised to be universally wrong (more or less) because it is a) always an offence against the victim and b) degrading to the torturer and the society that they claim to represent. This holds for the “ticking time bomb” scenario as much as any of the innocents of Guantanamo.

In the vanishingly rare “ticking time bomb” scenario (except in dramas), I hold that it is morally wrong to torture, even if the torturer has 100 percent solid evidence that information held by the victim will save lives. In that case, the torturer can choose whether to commit an immoral act, and should face the consequences ie/ be tried and convicted. The sentence can reflect the mitigating circumstances, but the sanctity of torture as an offence is maintained, and the judicial process allowed to discipline the covert reaches of the state.

In such circumstances, the nobility of the torturer, if such a thing is possible, stems from their willingness to sacrifice their liberty for the greater good. And they do so knowingly, within a culture which despises the act of torture, and seeks to expose every instance of its application. Only with that kind of honesty can a society ever, and only via the paradoxical application of judicial sanction, justify the commission of torture.

Of course, this is not how the US or British states operate, or indeed any state currently operates. Standards of evidence in detaining and interrogating suspected terrorists are obviously minimal, and deeply criminal. Moral arguments in favour of torture become monstrous in such an environment – as if I beat you to a pulp with your back turned and your limbs trussed, and then claim that my actions were defensive, and society agrees because I could have tripped over your prostrate body.

It shouldn’t be plausible. But as I argued above, it is possible to maintain the absolute prohibition of torture and yet envisage instances in which society can permit, circuitously, approbation of torturers.

I am intrigued by the argument that torture is OK if the torturer makes the decision to break the law knowing that he will be punished. I think that is what you are saying. You appear to be giving two different answers to the question “Can torture ever be justified?” As you know my answer is “Yes”, but I would have the use of torture very tightly defined and controlled. Shining a bright light in a suspect’s eyes could be construed as torture. Possibly the word is now debased by overuse and we should be focussing on interrogation techniques and how and when each may legally be used.

The question is not about interrogation techniques or the precise definition of torture. Nor is it about whether in some fantasy world torture might be justified.

The real question is about accountability. As I see it, you can only ever approach anywhere close to justifying torture, if every case of torture is prosecuted. Then, you can decide whether an individual warrants mercy, or not.

The real question is about whether the state is to be permitted to apply torturous techniques – regardless of justification – without fear of judicial reprisal.

And then, another related question. How do we end the “war on terror” that has given rise to a new wave of such abuses?

I too am very concerned about the state’s abuse of people’s human rights. It is concerning that any of us could be taken into custody and subjected to unpleasant interrogation techniques at the whim of some state employee. I agree that the penalties for misuse of police powers should be punitive. I would hope that a prisoner’s rights would include having a lawyer present in every interaction with the police, and I believe that this is how the law stands. The tricky part is how the state obtains information which the possessor is reluctant to reveal without using some kind of coercion.